By Fort Worth CLEAT Attorney Craig Driskell
Although most critical police incidents involve shootings, don’t forget that other incidents can generate the same level of investigation and media attention such as: in-custody deaths, fleet accidents involving serious bodily injury/death, etc.
So what do you do if you’re involved in a critical incident? This article is a very brief overview of what to expect in a Q&A format:
Q: What should I do if I’m involved in critical incident?
A: Let me answer this by saying that BEFORE you are involved in a critical incident make sure you are aware of your department’s requirements when you’re involved in an incident. For sure you are supposed to notify dispatch and your supervisor; however, don’t forget to contact your CLEAT attorney. Better yet, your fellow officer should make this call for you by calling 1-800-752-5328. After the CLEAT attorney has been notified, the next thing you should do is sit in your car, or someone’s patrol car, and limit what you say until the attorney shows up. The reason is that whatever you say to fellow officers and supervisors IS NOT privileged communication. Obviously you have to give some explanation as to what just happened – just don’t go into too much detail until your CLEAT attorney shows up and has a chance to advise you.
Q: When should I contact my CLEAT attorney?
A: Sort of answered in the first question, but I don’t mind restating it again, and again – call your CLEAT attorney as soon as you are involved in a critical incident. We have excellent response times and the quicker we get to you and get you debriefed, the faster the investigation will go. Keep in mind, Peer Support officers, CID detectives, IA detectives, Crime Scene personnel, and others are waiting patiently for the CLEAT attorney to finish up with his/her confidential interview with you before they can get started with their respective duties at the scene. It’s all about teamwork!
Q: Who all shows up to the scene?
A: Let’s face it; a critical incident is a big deal not only for you the involved officer but for the department as it quickly gets the attention of the media. Matter of fact when I am driving around looking for the critical incident scene, I look for the news helicopters - seriously. The following are a list of folks who may show up to the scene: your supervisory chain, head of your agency, your association representatives, Crime Scene, Peer Support officers, Public Affairs spokesperson, IA, CID, and of course your attorney.
Q: Who do I have to talk with at the scene?
A: After you’ve had an opportunity to consult with your CLEAT attorney, detectives will do a walk-through of the crime scene. This should be done with your attorney by your side the entire time. Detectives want to know what happened from your perspective. The better trained departments understand that some officers are a bit fuzzy on details due to the stress of the incident; however, do the best you can. In the days that follow, you may have better recall. If you remember important details, contact your attorney who will arrange for the detectives to re-interview you.
Another person who will want to talk with you either at the scene or back at the station, are Peer Support officers or counselors (sometimes referred to as Emergency Response Team Members/Providers). Peer Support officers or counselors are specially trained to provide assistance and guidance to officers involved in traumatic incidents. The good news is that your conversations with these members is confidential under §784.003 of the Texas Health and Safety Code.
Q: What’s the difference between Garrity and Miranda Warnings?
A: After leaving the critical incident scene, you will probably go back to the station to be interviewed. As a condition of being employed, you have to go through this interview. Your CLEAT attorney is not usually allowed to be present since this is an administrative interview. Since you could possibly make incriminating statements against yourself, the tradeoff is that the U.S. Supreme Court, in Garrity vs. New Jersey, 385 U.S. 493 (1967), prohibits your statements made during this mandatory interview, from being “used [against you] in subsequent criminal proceedings.”
On the other hand, let’s say things take a turn for the worse and criminal investigators want to talk with you about your critical incident. You still have rights! If anyone from the FBI, the Texas Rangers, or any criminal investigator wants to talk with you, don’t agree to do so without first consulting with your attorney. These folks are the ones who will start your interview off by reading you your Miranda Warnings. Keep in mind, just because you are a police officer you DO NOT have to waive your 5th Amendment right against self-incrimination. While you have to cooperate with IA, you don’t have to cooperate with criminal investigators.
Q: When will I get my gun back?
A: At the critical incident scene, the firearm you used will typically be taken from you by Crime Scene. At some point you will be given a replacement weapon, sometimes at the scene and sometimes at the station. Either way, you will lose the firearm for some period of time so ballistics can be done. Just remember that before you go back to work, you will need to qualify with the replacement weapon.
Q: How long does the investigation take?
A: And the answer, to no one’s surprise, is – “It just depends.” I’ve seen investigations get wrapped up in just a few months and others a lot longer. Just depends on the complexity of the critical incident. Your incident will go through legal reviews and chain-of-command reviews.
Q: Will my incident go before a grand jury and do I have to be present?
A: Just depends on your local District Attorney. For example, while the Dallas County DA presents all officer-involved shootings to grand juries, the Tarrant County DA only presents officer-involved shootings resulting in a suspect death.
During my stint as an assistant district attorney in Harris and Tarrant Counties, I found the members of grand juries to be pro-police and often times wished they could hug or thank officers for bravery after hearing about the incident the officer was forced to deal with. So in a word, relax. You will not be called to be a witness before a grand jury. What usually happens is an Assistant DA with the assistance of a detective will present the critical incident to the grand jury, without the officer ever being present. The grand jury then votes in secrecy to either “True Bill” (indict) or “No Bill” the officer. Thankfully grand juries rarely, and I mean rarely, indictment officers for his/her actions during a critical incident.
Q: What happens if I get sued?
A: It does happen occasionally that a family of a suspect will sue a city, the police department, and every single officer who was at the scene of a critical incident involving a fatality. Just goes with the job. The good news is that most of these law suits are frivolous and are dismissed. The main thing to know is that if you do get sued, statute requires the City to provide you legal representation. In the off chance the City denies you legal support, CLEAT is there for you.
